Data Gathering and the Right to Petition

January 2, 2019

As of the time of writing, the California Spotted Owl, Tricolored Bat, Narrow-foot Hygrotus Diving Beetle, and close to 150 other animal species are awaiting official determinations by the U.S. Fish and Wildlife Service as to whether they qualify as endangered. Each of these species is represented by a group of dedicated petitioners, who have filed extensively researched, eloquently written reportsnoting patterns of habitat loss and dwindling populations. 

To persuade the U.S. Fish and Wildlife Service that an animal is endangered, the petitioner must present “substantial scientific evidence” in support of its claims, backed by painstakingly gathered standardized data and geotagged photographs. Documenting the health, history, and travel patterns of these fragile and elusive species is no easy task.

Which is why, after long weeks of chasing after the Narrow-foot Hygrotus Diving Beetle and studying its current habitat, a researcher might well become infuriated by a state law that criminalizes the gathering of environmental data. In recent years, often as a result of lobbying from the agricultural industry, several states have passed broadly-sweeping laws that make it a crime to gather and publish data about farming practices, the natural world, and/or environmental resources. 

Notably, in 2015, Wyoming enacted two statutes that barred individuals from entering “open land for the purpose of collecting resource data,” unless the owner of the land gave permission. The statutes defined “resource data” as “data relating to land or land use,” including data related to “air, water, soil, conservation, habitat, vegetation or animal species.” Citizens were barred from taking photographs, collecting “sample[s] of material,” or otherwise “preserving information in any form” for submission to state and federal government agencies. The statutes also forbade the publication of data so gathered and required government agencies to expunge the data from their records. 

Following a successful legal challenge by environmental advocacy organizations, Wyoming made a few slight amendments to the statutes and attempted to pass the statutes again in 2016. The resulting First Amendment case, Western Watersheds Project v. Michael, went up to the 10th Circuit last year.

The plaintiffs in the suit (a coalition of non-profits led by the Western Watersheds Project, an environmental advocacy organization) sued Wyoming state officials for violating the First Amendment’s Speech and Petition Clauses. Plaintiffs claimed that the statutes in question stifled scientific research and advocacy by suppressing the collection and publication of essential data. Specifically, plaintiffs argued that their speech was chilled and they were disabled from effectively petitioning government agencies because of these two laws.

While finding that plaintiffs’ data collection practices constituted the protected creation of speech, the 10th Circuit declined to comment on plaintiffs’ claims that the statutes violated their right to petition. However, the court did note plaintiffs’ allegations that their data gathering practices were “indispensible” to their ability to interface with the government, observing that GPS location data, water quality readings, animal sighting records, photographs from the field, and other scientific information were often required to be filed with administrative petitions. After the 10th Circuit reversed and remanded the case, the District of Wyoming struck down the statutes.

Following Western Watersheds, the question remains: When a law interferes with an individual’s ability to gather data necessary for a proper petition, does it violate her right to petition? 

In Borough of Duryea v. Guarnieri, the Supreme Court noted that while the boundaries of the right to petition are fuzzy, its interpretation “must be guided by the objectives and aspirations that underlie the right,” particularly the ambition that citizens will be able to “express their ideas, hopes, and concerns to their government and their elected representative.” 

If a law denies citizens the ability to craft factually adequate petitions (by making it illegal to publish or gather the data they are required to include in their petitions), it would seem to stifle such expressive abilities. However, a D.D.C. case from this year casts doubt on whether courts will accept arguments to that effect. 

In Sandvig v. Sessions, plaintiffs (academic researchers studying online discrimination) used data scraping techniques to retrieve information from websites and intended to publish their results. Plaintiffs alleged that a law which criminalized using an Internet-connected computer “to receive...information that they are not supposed to” violated their rights under the Speech and Petition Clauses. Accordingly, they sued the Attorney General to enjoin enforcement of the law.

While sympathetic to their claims under the Speech Clause, the court dismissed their arguments that the law violated their right to petition. It reasoned that where a statute prohibits the speech necessary to engage in a petition, the effect on plaintiffs’ petition rights is “an extra step removed from the central speech harm...and is thus too attenuated to state a plausible claim for relief.” In such cases, the court suggested, the Speech and Press Clauses provide the more “natural home” for plaintiffs’ concerns. 

It remains to be seen whether other courts will follow this line of reasoning, or fix more broadly the boundaries of the right to petition. In the meantime, however, journalists and researchers would be well-advised to emphasize that data creation is protected speech, rather than merely an element of a successful administrative petition.